Bolt, Bromberg and a profoundly disturbing judgment

Andrew Bolt is featured in the Herald Sun on September 29, 2011, the day after Justice Mordecai Bromberg found two of Bolt's columns were unlawful under the Racial Discrimination Act.

Herald Sun

Andrew Bolt dishes it out. He is, one might say, a professional disher-out. So the self-pity in his Herald Sun column today is somewhat nauseating.

The finding by Justice Mordecai Bromberg that two of Bolt's columns were unlawful under the Racial Discrimination Act is, says Bolt, "a calamity that hit me"; he describes the court case as "this misery", "two years of worry, two weeks in court, and hundreds of thousands of dollars in legal costs" (not Bolt's dollars, mind you, but News Ltd's: we needn't feel sorry for him on financial grounds); and he will henceforward be silenced on multicultural issues because his opponents have "won a debate not by argument but by fear".

Not once in this morning's column does Bolt acknowledge, let alone in any way apologise for, the offence and hurt that he quite deliberately dished out in the original columns. He acknowledges, just barely, the series of factual errors that littered the original columns and blogs:

"I also made mistakes, Justice Bromberg said, although none seemed to me to be of consequence."

Yet at least some the mistakes and omissions seem to me – and more to the point, seemed to the judge – to be fundamental to his argument. More of that in a moment.

Nevertheless, Justice Bromberg's interpretation of the Racial Discrimination Act, and his application of it to Bolt's columns, strikes me as profoundly disturbing. Unlike Greg Barns and David Marr, I am not a lawyer, so I may have misunderstood some parts of Justice Bromberg's 57,000-word judgment. I hope I have. Because to my mind His Honour's claim that his judgment need not affect the media's freedom to publish reports and comments on racial identity is clearly absurd.

First, let's visit, as Justice Bromberg frequently does in his judgment, the law of defamation.

If you publish matter that exposes someone to ridicule, or damages their professional reputation, you can be sued for defamation; if you lose, the court can order you to pay damages to the plaintiff. There are, however, important defences which you can plead, even if the court finds that your publication was defamatory.

The first is the defence of truth: you have to prove that the defamatory imputations that you published are substantially true. Minor inaccuracies won't invalidate the defence so long as the substance is true.

Second is the defence of fair comment or honest opinion: if you honestly hold an opinion on a matter of public interest, you are entitled to express it, even if in the process you expose someone else to ridicule or otherwise lower their reputation.

And the courts have found that to be 'fair', the comment does not have to be 'reasonable'. On the contrary, as Justice Bromberg puts it in his judgment (par 353), opinions...

"...may be obstinate, exaggerated or simply wrong. But that, of itself, provides no valid basis for the law to curtail the expression of opinion. The fair comment defence at common law extends to protect opinions, even those that reasonable people would consider to be abhorrent."

But there is one important proviso, as the ABC's lawyers remind us at Media Watch every Monday morning. The facts on which those opinions are based must be summarised in the same publication, or be already widely known; and they must be 'truly stated' – in other words, they must be true facts, not false ones; furthermore, if facts that might militate against the validity of the defamatory opinion are not stated, that might undermine the defence too.

Let's suppose for a moment that some or all of Pat Eatock, Larissa Bernhardt, Geoff Clark and the 15 other 'light-skinned Aborigines' named in his columns had sued Andrew Bolt and News Ltd for defamation. It seems to me that most of them could easily argue that they had been defamed. And it seems to me that if Bolt had pleaded the defences of truth and fair comment, he might not have succeeded, because his research was so sloppy. The facts in his articles were not, in legal terms, 'truly stated'.

But let's suppose for a moment that he had been far more diligent than he seems to have been and that the facts he adduced in the columns were substantially accurate; that he got the ancestry and upbringing of the 'fair-skinned Aborigines' that were his targets right; that he accurately described the jobs they had held and the qualifications needed to get them; and so on.

Then, in my view, he should have been able to succeed with a fair comment defence against defamation. The court doesn't have to have liked his opinions, or thought them reasonable, or in any other way approved of them. It's enough that Bolt honestly held the views he outlined, and they are based on true facts.

The subjects of Bolt's columns, as we know, chose not to sue for defamation. Instead they took him to court under section 18C of the Racial Discrimination Act, which makes it unlawful to do an act in public (and that includes publishing an article in a popular newspaper) that "is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people" and which is done "because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group".

For reasons best known to its lawyers, the Herald Sun chose to argue that Bolt's columns weren't likely to offend anybody and/or that if they did it wasn't on the grounds of their race, colour etc. Both are self-evidently absurd propositions. As I've argued before, the act sets a disturbingly low bar. It's very easy to cause offence, and quite plainly Bolt's columns were likely to do so; and they were all about race, colour and ethnicity.

So it never seemed to most observers likely that a court wouldn't find that the columns were unlawful under section 18C. In my view, that's why section 18C shouldn't be in a part of the act which claims in its heading to be about the "Prohibition of offensive behaviour based on racial hatred". Whatever you think of Bolt's columns, they were clearly not based on or motivated by racial hatred.

But despite the heading, the wording of the act doesn't mention racial hatred. And the courts have found that its intention is far broader than its heading states. As Justice Bromberg puts it (par 334): "In seeking to promote tolerance and protect against intolerance in a multicultural society, the Racial Discrimination Act must be taken to include in its objective tolerance for and acceptance of racial and ethnic diversity."

It appears to follow that any publication which discourages tolerance for racial diversity, for example by mocking particular people's 'choices' of ethnic diversity, and which in the process causes offence or humiliation, is unlawful.

I don't think there's any other field of human relations, sexual, religious, or political, that's subject to federal legislation purporting to tell us what we can or can't say in this way.

But then comes section 18D – the part of the act that appears to be designed to protect free speech.

As in defamation law, fair comment is protected. Under section 18D (c)(ii), it is not unlawful to publish "a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment", even if that comment would otherwise be unlawful under section 18C.

Justice Bromberg ruled, however, that "fair comment" here means the same as it does in defamation law – it has to be based on "facts truly stated". And in his view, Bolt's sloppiness with the facts that he did state, and his omission of other relevant facts about his targets' cultural background and upbringing, meant that he lost the defence of fair comment.

Well, fair enough. As I said, a court might have found the same to be true if the plaintiffs had been suing for defamation. When you insult people, or hold them up to ridicule, it's really important that you get your facts right.

But – and this is the disturbing part – the judge goes on to find (in par 424):

"Even if I had been satisfied that the section 18C conduct was capable of being fair comment, I would not have been satisfied that it was said or done by Mr Bolt reasonably and in good faith."

Defamation law doesn't require fair comment to be reasonable, as we've seen. It doesn't require it to be 'in good faith'. But the exemptions listed in section 18D of the Racial Discrimination Act, including fair comment, only apply to "anything said or done reasonably and in good faith".

And Justice Bromberg makes it clear that if you write something that has a tendency to offend on the grounds of race, but you want it to be considered reasonable and in good faith, you won't necessarily get away with opinions that would in defamation law be covered by the fair comment defence – opinions that are extreme, or illogical, or which "reasonable people might find abhorrent".

On the contrary, says Justice Bromberg (in par 425), Andrew Bolt failed the test of reasonableness and good faith because "insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice."

And he specifically mentions, not just the wrong facts, but "the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides."

In other words, if you want the protection of section 18D of the act when writing about race in a way that's likely to offend, you need to be polite, not derisive, calm and moderate rather than provocative and inflammatory, and you must eschew 'gratuitous asides'.

If you did all that, of course, you'd be unlikely to offend anyone in the first place. So there doesn't seem much point in section 18D. And you'd also struggle to express your view in a way that would attract readers in a popular newspaper.

At the end of the summary of his judgment, Justice Bromberg writes: "it is important that nothing in the orders I make should suggest that it is unlawful for a publication to deal with racial identification, including by challenging the genuineness of the identification of a group of people."

No, unless those publications fail to meet the court's idea of what is reasonable and in good faith. Or, as Andrew Bolt puts it, "unless your adjectives are too sharp, your wit too pointed, your views too blunt, your observations not quite to the point, your teasing too ticklish and your facts not in every case exactly correct."

Andrew Bolt should get his facts right. Andrew Bolt shouldn't whinge about misery and calamity, when he's been unwilling to acknowledge, and apologise for, the facts he got wrong. Andrew Bolt should perhaps write a little bit less, in order to ensure that what he does write is properly researched.

But this judgment reinforces all the concerns that its opponents had when the Keating government added Part 2A to the Racial Discrimination Act in 1995. It creates one particular area of public life where speech is regulated by tests that simply don't apply anywhere else, and in which judges - never, for all their pontifications, friends of free speech - get to do the regulating.

Jonathan Holmes, the presenter of ABC TV's Media Watch, has been a journalist for 35 years.